Family Law Scholars Amicus Brief

8/9/2019 Family Law Scholars Amicus Brief

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Nos. 14-556, 14-562, 14-571 and 14-574

IN THE

Supreme Court of the United States

J AMES OBERGEFELL, ET AL., AND BRITTANI HENRY , ET AL.,

PETITIONERS,

v.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

V ALERIA T ANCO, ET AL., PETITIONERS,

v.

WILLIAM EDWARD “BILL” H ASLAM, GOVERNOR OFTENNESSEE, ET AL., RESPONDENTS.

A PRIL DEBOER, ET AL., PETITIONERS,

v.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.,

RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

v.

STEVE BESHEAR, GOVERNOR OF K ENTUCKY , ET AL.,

RESPONDENTS.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF A PPEALS FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE FAMILY LAW

SCHOLARS IN SUPPORT OF PETITIONERS

Joan Heifetz Hollinger

UC BERKELEY SCHOOL OF

L AW

Berkeley, CA 94720

Courtney Joslin

UC D AVIS SCHOOL OF L AW Davis, CA 95616

E. Joshua Rosenkranz

Counsel of Record

Mark S. Davies

Jeremy Peterman

ORRICK , HERRINGTON &

SUTCLIFFE LLP

51 West 52nd StreetNew York, NY 10019

(212) 506-5000

[email protected]


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... iv

INTEREST OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ................................... 1

ARGUMENT ............................................................. 3

I. State Family Laws Support The

Emotional And Economic Unity OfMarried Couples And Have Never

Limited Marriage To Those Who Can

Procreate ......................................................... 3

A. State laws demonstrate that

encouraging a strong spousal

relationship is a defining purpose

of marriage ........................................... 4

B. State laws demonstrate that

procreation is not the defining

purpose of marriage ............................. 8

II. State Family Laws Recognize Multiple

Ways To Establish Legal Parent-Child

Relationships And Do Not Privilege

Biological Parents Over Other Legal

Parents .......................................................... 11

A. State laws permit and protect

non-biological parent-child

relationships established through

adoption, assisted reproduction,

and other ties ..................................... 12


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B. State laws do not privilegebiological parent-child

relationships over other types of

legal parent-child relationships ........ 17

III. State Marital, Parentage, And Custody

Laws Have Abandoned Gender

Distinctions And Do Not Privilege

“Gender-Differentiated” Parenting .............. 18

A. States have abandoned marital,

parentage, and custody laws

based on gender stereotypes ............. 19

B. State laws do not and cannot

limit marriage to those who

parent according to prescribed

gender norms ..................................... 24

1. States do not limit

marriage to those who

satisfy specific parental

norms ....................................... 24

2. States cannot enforcegender-based parental

norms ....................................... 26

IV. State Family Laws Recognize That It Is

Impermissible To Punish Children To

Influence The Behavior Of Adults ............... 29

A. State laws reflect that it is

impermissible to punish children

to influence parental behavior .......... 29

B. The marriage bans punish

children raised by same-sex

couples ................................................ 31


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CONCLUSION ........................................................ 34

APPENDIX A…………………………………………...1a


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iv

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Adoptive Couple v. Baby Girl,

570 U.S. ___ (2013) ..............................................16

Astrue v. Capato,

132 S. Ct. 2021 (2012) ..........................................11

Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) ..............................................24

Bostic v. Schaefer,

760 F.3d 352 (4th Cir. 2013) ................................26

Caban v. Mohammed,

441 U.S. 380 (1979) ..............................................28

Califano v. Goldfarb,

430 U.S. 199 (1977) ..............................................27

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ..............................................24

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014) ........................ passim

DeBoer v. Snyder,

973 F. Supp. 2d 757 (E.D. Mich. 2014) ......... 25, 26

Eisenstadt v. Baird,

405 U.S. 438 (1971) ........................................ 10, 17


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Frontiero v. Richardson,411 U.S. 677 (1973) ..............................................27

Gomez v. Perez,

409 U.S. 535 (1973) ..............................................31

Griswold v. Connecticut,

381 U.S. 479 (1965) ..............................................10

Kirchberg v. Feenstra,

450 U.S. 455 (1981) ..............................................27

Latta v. Otter,

771 F.3d 456 (9th Cir. 2014) .......................... 18, 26

Lawrence v. Texas,

539 U.S. 558 (2003) ..............................................11

Lehr v. Robertson,

463 U.S. 248 (1983) ........................................ 15, 16

Levy v. Louisiana,

391 U.S. 68 (1968) ................................................30

Meyer v. Nebraska,

262 U.S. 390 (1923) ..............................................28

Michael H. v. Gerald D.,

491 U.S. 110 (1989) ........................................ 14, 15

Miss. Univ. for Women v. Hogan,

458 U.S. 718 (1982) ..............................................28

Orr v. Orr,

440 U.S. 268 (1979) ........................................ 18, 27


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Palmore v. Sidoti,466 U.S. 429 (1984) ..............................................27

Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010).................. 26

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ..............................................28

Quilloin v. Walcott,

434 U.S. 246 (1978) ..............................................15

Smith v. O.F.F.E.R.,

431 U.S. 816 (1977) ..............................................12

Stanley v. Illinois,

405 U.S. 645 (1972) ..............................................27

Stanton v. Stanton,

421 U.S. 7 (1975) ..................................................28

Trammel v. United States,

445 U.S. 40 (1980) ..................................................5

Trimble v. Gordon,

430 U.S. 762 (1977) ..............................................30

Troxel v. Granville,

530 U.S. 57 (2000) ................................................28

Turner v. Safley,

482 U.S. 78 (1987) .............................................. 7, 8

United States v. Virginia,

518 U.S. 515 (1996) ..............................................27


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United States v. Windsor,133 S. Ct. 2675 (2013) ................................ 8, 26, 29

Weber v. Aetna Cas. & Sur. Co.,

406 U.S. 164 (1972) ........................................ 30, 34

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975) ..............................................27

Wolf v. Walker,

766 F.3d 648 (7th Cir. 2014) ................................26

Zablocki v. Redhail,

434 U.S. 374 (1978) ..............................................25

State Cases

Atkinson v. Atkinson,

408 N.W.2d 516 (Mich. Ct. App. 1987) ............... 14

Basham v. Wilkins,

851 S.W.2d 491 (Ky. Ct. App. 1993) ....................31

Boone v. Ballinger,

228 S.W.3d 1 (Ky. Ct. App. 2007) ........................14

Bowen v. Kil-Kare, Inc.,

585 N.E.2d 384 (Ohio 1992) ..................................5

In re Dearing ,

648 N.E.2d 57 (Ohio 1994) ..................................16

Elisa B. v. Superior Court,

117 P.3d 660 (Cal. 2005) ......................................13


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Ex parte Devine,398 So.2d 686 (Ala. 1981) ....................................28

Frazier v. Goudschaal,

295 P.3d 542 (Kan. 2013) ....................................13

Goodridge v. Dep’t of Pub. Health,

798 N.E.2d 941 (Mass. 2003) ...............................33

In re Guardianship of Madelyn B.,

98 A.3d 494 (N.H. 2014) ......................................13

Ireland v. Smith,

547 N.W.2d 686 (Mich. 1996) ..............................22

Krieger v. Krieger,

81 P.2d 1081 (Idaho 1938) ...................................21

Lapides v. Lapides,

171 N.E. 911 (N.Y. 1930) .......................................9

Leguillon v. Leguillon,

707 N.E.2d 571 (Ohio Ct. App. 1998) .................. 14

Linda R. v. Richard E .,

162 A.D.2d 48 (App. Div. 1990) ...........................23

Mahle v. Mahle,

500 N.E.2d 907 (Ohio Ct. App. 1985) ....................7

In re Marriage Cases,

183 P.3d 384 (Cal. 2008) ..................................8, 33

In re Mullen,

953 N.E.2d 302 (Ohio 2011) ................................ 15


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In re Nicholas H .,46 P.3d 932 (Cal. 2002) ........................................15

In re Parentage of Robinson,

890 A.2d 1036 (N.J. Super. Ct. Ch. Div.

2005) .....................................................................13

People v. Wallace,

434 N.W.2d 422 (Mich. Ct. App. 1988) ............... 20

Picklesimmer v. Mullins,

317 S.W.3d 569 (Ky. 2010) ..................................15

Preston v. Smith,

293 S.W.2d 51 (Tenn. Ct. App. 1955) .................. 20

Pusey v. Pusey,

728 P.2d 117 (Utah 1986) ....................................21

S. Ry. Co. v. Sanders,

246 S.W.2d 65 (Tenn. 1952) ................................31

Shineovich v. Shineovich,214 P.3d 29 (Or. Ct. App. 2009) ..........................13

Sinicropi v. Mazurek,

729 N.W. 256 (Mich. Ct. App. 2006) ....................14

Tuter v. Tuter,

120 S.W.2d 203 (Mo. Ct. App. 1938) ...................22

Varnum v. Brien,

763 N.W.2d 862 (Iowa 2009) ...............................25


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Waite v. Waite,64 S.W.3d 217 (Tex. App. 14th Dist.

2001) .......................................................................7

Welch v. Welch,

195 S.W.3d 72 (Tenn. Ct. App. 2005) .................. 14

Federal Statutes

Family Support Act of 1988, Pub. L. No.

100-485, 102 Stat. 2343 (1988) ............................23

State Statutes

Ariz. Rev. Stat. § 25-101(B) ......................................10

D.C. Code § 16-909(e)(1) ........................................... 13

13 Del. C. § 8-703 ......................................................13

750 Ill. Comp. Stat. Ann. 5 § 212(a)(4) ..................... 10

Ind. Code Ann. § 31-11-1-2(2) ...................................10

Ky. Rev. Stat. § 141.180 ..............................................5

Ky. Rev. Stat. § 199.470 ............................................12

Ky. Rev. Stat. § 199.470(2) .......................................32

Ky. Rev. Stat. § 311.631 ............................................32

Ky. Rev. Stat. § 311.631(1)(c) .....................................5

Ky. Rev. Stat. § 342.750 ..............................................5

Ky. Rev. Stat. § 381.050 ..............................................5


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Ky. Rev. Stat. § 391.010(4) ...................................6, 21

Ky. Rev. Stat. § 391.010, et seq.................................32

Ky. Rev. Stat. § 391.105 ............................................31

Ky. Rev. Stat. § 402.005 ..............................................6

Ky. Rev. Stat. § 402.010 ..............................................9

Ky. Rev. Stat. § 402.020(1)(b) .....................................9

Ky. Rev. Stat. § 402.030 ..............................................9

Ky. Rev. Stat. § 403.025 ..............................................7

Ky. Rev. Stat. § 403.140 ............................................21

Ky. Rev. Stat. § 403.160 ............................................21

Ky. Rev. Stat. § 403.170 ............................................21

Ky. Rev. Stat. § 403.190 ........................................6, 21

Ky. Rev. Stat. § 403.200 ........................................6, 21

Ky. Rev. Stat. § 403.212 ............................................23

Ky. Rev. Stat. § 403.270 ............................................22

Ky. Rev. Stat. §§ 404.020–404.030 ........................... 20

Ky. Rev. Stat. § 404.060 ............................................20

Ky. Rev. Stat. § 405.020 ............................................32

Ky. Rev. Stat. § 411.130 ............................................32


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Ky. Rev. Stat. § 411.145 ..............................................5

Ky. Rule. Evid. § 504 ...................................................5

Mich. Comp. Laws § 199.470 ....................................12

Mich. Comp. Laws § 205.201 ......................................5

Mich. Comp. Laws § 205.202 ......................................5

Mich. Comp. Laws § 333.2824(6) ..............................13

Mich. Comp. Laws § 418.321 ......................................5

Mich. Comp. Laws § 481.331 ......................................5

Mich. Comp. Laws § 551.3 ..........................................9

Mich. Comp. Laws § 551.4 ..........................................9

Mich. Comp. Laws § 551.5 ..........................................9

Mich. Comp. Laws § 551.51 ........................................9

Mich. Comp. Laws § 551.103 ......................................9

Mich. Comp. Laws § 552.6 ..........................................7

Mich. Comp. Laws § 552.11 ......................................21

Mich. Comp. Laws § 552.13 ......................................21

Mich. Comp. Laws § 552.18 ..................................6, 21

Mich. Comp. Laws § 552.19 ......................................21

Mich. Comp. Laws § 552.23 ..................................6, 21


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Mich. Comp. Laws § 552.605 ....................................23

Mich. Comp. Laws §§ 557.21-557.28 ........................ 20

Mich. Comp. Laws § 557.71 ........................................5

Mich. Comp. Laws § 557.81 ........................................5

Mich. Comp. Laws § 600.2162 ....................................5

Mich. Comp. Laws § 600.2922 ..............................5, 32

Mich. Comp. Laws § 700.2102 ..............................6, 21

Mich. Comp. Laws § 700.2103 ..................................32

Mich. Comp. Laws § 700.2114 ..................................31

Mich. Comp. Laws § 700.5301 ....................................5

Mich. Comp. Laws §§ 710.24(1)-(2) ..........................32

Mich. Comp. Laws § 710.60(2) ..................................12

Mich. Comp. Laws § 722.21, et seq. .................... 22, 31

Nev. Rev. Stat. Ann. § 126.670 ................................. 13

N.D. Cent. Code Ann. § 14-20-61 ..............................13

N.H. Rev. Stat. Ann. § 168-B:2 .................................13

N.M. Stat. Ann. § 40-11A-703 ...................................13

Ohio Rev. Code § 145.43 .............................................5

Ohio Rev. Code §§ 145.45–46 ......................................5


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Ohio Rev. Code § 742.37 .............................................5

Ohio Rev. Code § 1337.16(D)(1)(b)(ii) .........................5

Ohio Rev. Code § 2105.06 .........................................32

Ohio Rev. Code §§ 2106.01, et seq. ........................6, 21

Ohio Rev. Code § 2125.02 .........................................32

Ohio Rev. Code § 2151.231 .......................................31

Ohio Rev. Code § 2307.09 .........................................20

Ohio Rev. Code § 2317.02 ...........................................5

Ohio Rev. Code § 2945.42 ...........................................5

Ohio Rev. Code § 3101.01(A) ......................................9

Ohio Rev. Code § 3103.03 ......................... 5, 20, 22, 23

Ohio Rev. Code § 3103.04 .........................................20

Ohio Rev. Code § 3103.07 .........................................20

Ohio Rev. Code § 3103.08 .........................................20

Ohio Rev. Code § 3105.01 .........................................21

Ohio Rev. Code §§ 3105.01(A)-(K) ..............................6

Ohio Rev. Code § 3105.18 .....................................6, 21

Ohio Rev. Code § 3105.18(C) ....................................21

Ohio Rev. Code § 3105.18(C)(2) ................................ 20


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Ohio Rev. Code § 3105.31 ...........................................9

Ohio Rev. Code § 3107.03(D)(1) ................................ 32

Ohio Rev. Code § 3107.15 .........................................12

Ohio Rev. Code § 3107.081(E) ..................................12

Ohio Rev. Code § 3109.03 .........................................22

Ohio Rev. Code § 3109.04 .........................................22

Ohio Rev. Code § 3111.01 .........................................31

Ohio Rev. Code § 3111.01(B) ....................................31

Ohio Rev. Code § 3111.95(A) ....................................13

Ohio Rev. Code § 4123.59 ...........................................5

Ohio Rev. Code § 5747.01 ...........................................6

Ohio Rev. Code § 5747.05 ...........................................6

Tenn. Code Ann. § 20-5-106 ......................................32

Tenn. Code Ann. § 24-1-201 ........................................5

Tenn. Code Ann. § 25-1-106 ........................................5

Tenn. Code Ann. § 31-2-104 .................................. 6, 21

Tenn. Code Ann. § 31-2-105 ......................................32

Tenn. Code Ann. § 36-1-102(15)(B) .......................... 12

Tenn. Code Ann. § 36-2-316 ......................................31


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Tenn. Code Ann. § 36-3-101 ........................................9

Tenn. Code Ann. § 36-3-102 ........................................9

Tenn. Code Ann. § 36-3-105 ........................................9

Tenn. Code Ann. § 36-3-504 ......................................20

Tenn. Code Ann. § 36-3-505 ........................................5

Tenn. Code Ann. § 36-4-101 ......................................21

Tenn. Code Ann. § 36-4-101 (a)(2)-(15) ......................6

Tenn. Code Ann. § 36-4-103 ......................................21

Tenn. Code Ann. § 36-4-121 ........................................6

Tenn. Code Ann. § 36-5-101 ........................ 6, 21, 23, 2

Tenn. Code Ann. § 36-5-121 .................................. 6, 21

Tenn. Code Ann. § 36-6-101 ......................................32

Tenn. Code Ann. § 36-6-101(d) (2001) ...................... 22

Tenn. Code Ann. § 36-6-103 ......................................32

Tenn. Code Ann. § 50-6-210 ........................................5

Tenn. Code Ann. § 66-1-109 ........................................5

Tenn. Code Ann. § 67-8-102 ........................................6

Tenn. Code Ann. § 67-8-302 ........................................6

Tenn. Code Ann. § 67-8-305 ........................................6


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Tenn. Code Ann. § 67-8-314 ........................................6

Tenn. Code Ann. § 68-3-306 ......................................13

Tenn. Code Ann. § 68-11-1806(c)(3)(A) ......................5

Utah Code § 30-1-1(2)(a)-(b) .....................................10

Wash. Rev. Code Ann. § 26.26.710 ........................... 13

Wis. Stat. Ann. § 765.03(1) .......................................10

Wy. Stat. Ann. § 14-2-903 .........................................13

Constitutional Provisions

Fourteenth Amendment .............................................1

Mich. Const. Article X, § 1 ........................................20

Other Authorities

Adoption Law & Practice (J.H. Hollinger

ed. 1988 & supp. 2014) .................................. 12, 16

4 A.L.R.2d 227 (Originally published in

1949) .......................................................................9

Brief Amicus Curiae Catholic Conference of

Ohio In Support of Appellant, Henry v.

Himes, 772 F.3d 388 (6th Cir.) ..............................4

Brief for Michigan Defendants-Appellants

at 46, DeBoer v. Snyder, 772 F.3d 388

(No. 14-1341) (6th Cir. 2014) ................... 17, 18, 33


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June Carbone & Naomi Cahn, Marriage,Parentage, and Child Support, 45 Fam.

L.Q. 219, 220 (2011) .............................................14

Centers for Disease Control and

Prevention, ART Success Rates,

available at

http://www.cdc.gov/art/reports/index.ht

ml ..........................................................................13

Michael L. Eisenberg, M.D. et al.,

Predictors of not Pursuing InfertilityTreatment After an Infertility

Diagnosis: Examination of a Prospective

U.S. Cohort, 94 Fertility & Sterility

2369 (2010) .............................................................9

Family and Society, Encyc. of Contemp.

Am. Soc. Issues (Michael Shally-Jensen

ed., 2011) ................................................................9

Courtney G. Joslin, Modernizing Divorce

Jurisdiction: Same-Sex Couples andMinimum Contacts, 91 B.U. L. Rev.

1669 (2011) .............................................................7

Michael E. Lamb, Mothers, Fathers,

Families, and Circumstances Factors

Affecting Children’s Adjustment, 16

Applied Developmental Sci. 98 (2012) ................ 23

Laura W. Morgan, Child Support

Guidelines: Interpretation and

Application § 1.07 (2d ed. 2013) .......................... 23


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Melissa Murray, Marriage As Punishment,112 Colum. L. Rev. 1(2012) .................................30

Joshua C. Tate, Caregiving and the Case for

Testamentary Freedom, 42 U.C. Davis L.

Rev. 129 (2008) ................................................7, 21

Unif. Parentage Act (2001 & Supp. 2010) .......... 15, 31

Uniform Law Commission, Parentage Act,

http://www.uniformlawcommission.com/

Act.aspx?title=Parentage%20Act ........................15


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INTEREST OF AMICI CURIAE 1

Amici Curiae —seventy four scholars of familylaw2 —respectfully submit this brief in support of Pe-titioners. The two questions presented here concernwhether the Fourteenth Amendment requires a state

to license or recognize a marriage between two peo-ple of the same sex. Amici have substantialknowledge of, and experience with, the state familylaws that address marriage, parentage, and the well-being of children. Our brief demonstrates that the

rationales proposed by Respondents for declining tolicense or recognize same sex marriages fundamen-tally conflict with basic family laws and policies inevery state.

SUMMARY OF ARGUMENT

Kentucky, Michigan, Ohio, and Tennessee ban

same-sex couples from marriage and deny recogni-tion to marriages that same-sex couples enter intoelsewhere (“marriage bans”). In defending the mar-

riage bans, these states and their amici (collectively“ban defenders”) rely on two primary arguments:first, that a core, defining element of marriage is the

possibility of biological, unassisted procreation; andsecond, that the “optimal” setting for raising chil-dren is a home with their married, biological moth-

1 This brief is filed with written consent of the Petitioners

and under Respondents’ blanket consent. Pursuant to

Rule 37.6, no counsel for any party authored this brief in whole

or in part, and no party or counsel for any party made a

monetary contribution intended to fund the preparation or

submission of this brief.2 Amici professors are listed in Appendix A.


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ers and fathers. But the family laws that governmarital and parental relationships in these verystates, as well as in the rest of the country, tell a dif-ferent story.

No state has ever limited marriage to coupleswho can demonstrate that they have procreative ca-pacity and desire. Instead, in these four states andelsewhere, the state family laws that govern mar-

riage recognize that couples marry for many reasons,including public acknowledgement of their private

choice to share their lives with someone they loveand to enter a legally binding union that confershundreds of mutual rights and obligations. Theserights and obligations help the couple care for each

other, as well as their children (if any), regardless ofhow those children were conceived.

State family laws that govern the parent-child

relationship also refute the “optimal parenting” ar-gument. These laws do not privilege parenting bybiological parents who parent in “gender differenti-

ated” ways over other forms of parenting. States af-ford full parental rights to legal parents who have nobiological or genetic ties to a child. In many circum-

stances, a biological or genetic tie is neither neces-sary nor sufficient to establish a legal parent-childrelationship. State family laws also reject onceprevalent notions that a parent’s sex or gender is le-gally relevant to determinations of a child’s best in-terests. Moreover, states exclude no other couples

from marriage based on a belief that they will pro-vide a suboptimal setting for raising children.

Finally, state family laws recognize that it is un-

constitutional to punish children to influence the be-


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havior of adults. Yet the marriage bans do just this.They deprive the children of same-sex couples ofvaluable governmental, social, and personal benefitsin the name of incentivizing others to be “ideal” par-ents or to have more children.

The marriage bans cannot stand.3

ARGUMENT

I. State Family Laws Support The Emotional

And Economic Unity Of Married Couples And Have Never Limited Marriage To

Those Who Can Procreate.

In Kentucky, Michigan, Ohio, and Tennessee, asin every other state, couples get married for anynumber of reasons, including a desire for public ac-knowledgment of their private choice to share theirlives with someone they love and to enter a legally

binding union that confers enduring, mutual rightsand obligations. State family laws reflect that

providing a sustaining environment for a couple is afundamental purpose of marriage independent ofwhether a couple has or intends to have children.These laws provide married couples with valuable

legal protections and hundreds of state and federalbenefits that make it easier for spouses to supporteach other during life and in death. And state di-vorce laws enable spouses to end a marriage when-ever their personal relationship ends.

3 Although Amici agree with Petitioners that the marriage

bans should be subject to heightened scrutiny, the ban is

unconstitutional under any standard of review.


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Ignoring this state law background, the ban de-fenders argue that excluding same-sex couples frommarriage is justified because such couples lack “pro-creative capacity” and marriage has always beenlinked to procreation. Some ban defenders argue

that marriage, by definition, is limited to coupleswho have the potential to engage in unassisted, bio-logical procreation. See, e.g., Brief Amicus Curiae Catholic Conference of Ohio In Support of Appellantat 6, Henry v. Himes, 772 F.3d 388 (6th Cir.). Otherban defenders argue that the core purpose of mar-

riage is to channel heterosexual irresponsible cou-ples’ “procreative urges” into marriage. DeBoer v.Snyder, 772 F.3d 388, 404 (6th Cir. 2014). Underboth articulations, the core element or purpose ofmarriage relates to unassisted, biological procrea-tion. The laws of no state reflect this limited under-

standing of marriage and its purposes. Any effort torestrict marriage only to those couples who can bio-logically procreate without assistance would also beconstitutionally impermissible.

A.

State laws demonstrate thatencouraging a strong spousal

relationship is a defining purpose of

marriage.

In Kentucky, Michigan, Ohio, and Tennessee, asin every other state, the laws that establish marital

rights and responsibilities enable spouses to protectand foster their personal, intimate, and mutuallydependent relationship to one another. Some ofthese laws help married couples care for one anoth-

er, including the rights to make healthcare deci-


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sions, 4 secure workers’ compensation and pensionbenefits,5 pursue claims for loss of consortium,6 andinvoke testimonial privileges.7

Other state laws facilitate the economic interde-pendence of the married spouses. Many common-law states, including Kentucky, Michigan, and Ten-nessee, permit spouses to own property as tenants bythe entirety, which gives each spouse an equal, un-

divided ownership interest. 8 During marriage,spouses have mutual rights and support obligations

to one another.9 They may file their taxes as a mar-ried couple and enjoy various state tax benefits.10

4 See, e.g., Ky. Rev. Stat. § 311.631(1)(c); Mich. Comp.

Laws § 700.5301; Ohio Rev. Code § 1337.16(D)(1)(b)(ii); Tenn.

Code Ann. § 68-11-1806(c)(3)(A).5 See, e.g., Ky. Rev. Stat. § 342.750; Mich. Comp. Laws

§§ 418.321, 481.331; Ohio Rev. Code §§ 145.43, 145.45–46,

742.37, 4123.59; Tenn. Code Ann. § 50-6-210.6 See, e.g., Ky. Rev. Stat. § 411.145; Mich. Comp. Laws

§ 600.2922; Bowen v. Kil-Kare, Inc., 585 N.E.2d 384, 391 (Ohio

1992) (noting well-established tort); Tenn. Code Ann. § 25-1-

106.7 See Ky. R. Evid. § 504; Mich. Comp. Laws § 600.2162;

Ohio Rev. Code §§ 2317.02, 2945.42; Tenn. Code Ann. § 24-1-

201. The Federal Rules of Evidence also recognize the

common-law rule that spouses cannot be compelled to testify

against one another, furthering “the important public interest

in marital harmony.” Trammel v. United States, 445 U.S. 40,

53 (1980).8 See, e.g., Ky. Rev. Stat. § 381.050; Mich. Comp. Laws

§§ 557.71, 557.81; Tenn. Code Ann. §§ 66-1-109, 36-3-505.9 See, e.g., Ky. Rev. Stat. § 402.005 (“community of the

duties” mutually owed between spouses); Ohio Rev. Code

§§ 3103.03 (spousal support).10 See Ky. Rev. Stat. § 141.180 (joint filing); Mich. Comp.

Laws §§ 205.201, 202 (spousal transfer tax exemptions); Ohio


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Upon divorce, the parties have a right to an equita-ble or equal share of the marital property11 and toalimony.12 And upon death, the spouses have a rightto intestate succession13 and may not be disinheritedif there is a will.14 These laws may relieve the state

of the obligation to care for some individuals whomight otherwise become unable to support them-selves.

State laws governing divorce confirm that the re-lationship between spouses is a defining feature of

marriage. In the past, when a marriage was dis-solved, fault-based divorce laws focused on spousalmisconduct that harmed the spousal relationship,such as adultery, cruel and inhuman treatment, or

desertion.15 Today, every state provides at least one

Rev. Code § 5747.01, 5747.05; Tenn. Code Ann. §§ 67-8-102, 67-

8-302, 67-8-305, 67-8-314 (inheritance and gift tax benefits for

spouses).11 See, e.g., Ky. Rev. Stat. § 403.190; Mich. Comp. Laws

§ 552.18; Ohio Rev. Code § 3105.18; Tenn. Code Ann. §§ 36-5-

101, 36-4-121.12 See, e.g., Ky. Rev. Stat. § 403.200; Mich. Comp. Laws

§ 552.23; Ohio Rev. Code § 3105.18; Tenn. Code Ann. § 36-5-

121.13 See, e.g., Ky. Rev. Stat. § 391.010(4); Mich. Comp. Laws

§ 700.2102; Ohio Rev. Code §§ 2106.01, et seq. (surviving

spouse’s rights in probate); Tenn. Code Ann. § 31-2-104.14 See Joshua C. Tate, Caregiving and the Case for

Testamentary Freedom, 42 U.C. Davis L. Rev. 129, 160 (2008)

(“With the exception of Georgia, every American state limits

the ability of a testator to disinherit a surviving spouse.”). 15 See, e.g., Ohio Rev. Code §§ 3105.01(A)-(K) (grounds for

divorce, none of which involve procreative ability or desire);

Tenn. Code Ann. § 36-4-101 (a)(2)-(15) (listing the many non-

procreative grounds for divorce).


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no-fault ground for divorce. 16 No-fault divorce ispremised on the notion that the spouses can endtheir marriage based on the breakdown of the spous-al relationship, without having to prove fault or mis-conduct. 17 Many states, including Michigan and

Kentucky, have gone even further, repealing allfault-based grounds and enacting only no-faultgrounds.18 In every state, a marriage can be dis-solved when the personal relationship between theadults is over.

All these state laws illustrate that furtheringthe committed union between two individuals is afundamental purpose of marriage. These laws ena-ble the couple to make a particular “expression[] of

emotional support and public commitment” and enti-tle the couple to “the receipt of government benefits”that help sustain the commitment. Turner v. Safley,482 U.S. 78, 95-96 (1987). The support and protec-tions that a couple receive from the state’s acknowl-

16 See Waite v. Waite, 64 S.W.3d 217, 240 (Tex. App. 14th

Dist. 2001) (recognizing that “[e]very state in the country hassome form of no-fault divorce statute”).

17 See, e.g., id.; see also Mahle v. Mahle, 500 N.E.2d 907,

909 (Ohio Ct. App. 1985) (living separately for one year is

meant to be a “no- fault” divorce remedy, foreclosing the

applicability of fault-oriented defenses); see generally Courtney

G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples

and Minimum Contacts, 91 B.U.L. Rev. 1669, 1670 n.5, 1704

(2011) (“‘No-fault divorce’ means that a divorce can be obtained

solely on the basis of the breakdown of the marital relationship

without a showing of fault or misconduct.”).18 See, e.g., Ky. Rev. Stat. § 403.025 (“irretrievable

breakdown of the marriage” only standard for dissolution);

Mich. Comp. Laws § 552.6 (“breakdown of the marriage

relationship” only standard for divorce).


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edgment of their private and personal union can en-hance a couple’s emotional well-being and enablethem to enjoy a greater level of personal stability.“Responsibilities, as well as rights, enhance the dig-nity and integrity of the person.” United States v.

Windsor, 133 S. Ct. 2675, 2694 (2013).

B. State laws demonstrate that

procreation is not the defining purpose

of marriage.

Ban defenders’ insistence that marriage is inex-tricably intertwined with procreation is simplywrong. An ability, desire, or promise to procreate isnot, and has never been, a prerequisite for a validmarriage in any state.19 States permit different-sexcouples to marry regardless of procreative ability ordesire. Because procreation is neither an essential

requirement of marriage nor its sole or primary pur-pose, the states’ asserted interest in limiting mar-riage to those who may procreate cannot justify theban. See Turner, 482 U.S. at 95 (unconstitutional to

deny right to marry when “important attributes ofmarriage remain”).

No state requires couples to prove their fertilityin order to enter a valid marriage. In Kentucky,Michigan, Ohio, and Tennessee, the only require-

ments for marriage are that the person be unmar-

19 In re Marriage Cases, 183 P.3d 384, 431 (Cal. 2008)

(“[M]en and women who desire to raise children with a loved

one in a recognized family but who are physically unable to

conceive a child with their loved one never have been excluded

from the right to marry.”).


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ried, at the age of consent, marrying someone who isnot a close relative, and capable of giving consent.20 Indeed, these states do not even require sexual inti-macy to enter into or validate a lawful marriage.

Moreover, absent fraud, once a couple is married,the very common condition of infertility is not a basisfor invalidating the marriage.21 Likewise, lack ofprocreative desire, absent fraud, cannot justify an-

nulment.22

Accordingly, no states prohibit elderly womenfrom marrying—a class of people who, just like

same-sex couples, have no potential ability to engagein unassisted biological procreation with theirspouse. No state prohibits the eleven million indi-viduals and two million couples who suffer from in-fertility from choosing to marry.23 And some states

20 See, e.g., Ky. Rev. Stat. §§ 402.010 (close relative);

402.020(1)(b) (unmarried status), 402.030 (age of consent);

Mich. Comp. Laws §§ 551.3 (close relative), 551.4 (close

relative); 551.5 (unmarried status), 551.51, 551.103 (age ofconsent); Ohio Rev. Code § 3101.01(A) (age of consent, close

relative and unmarried status); Tenn. Code Ann. §§ 36-3-101

(close relative); 36-3-102 (unmarried status), 36-3-105 (age of

consent).21 See, e.g., Ohio Rev. Code § 3105.31; Lapides v. Lapides,

171 N.E. 911, 913 (N.Y. 1930) (“The inability to bear children is

not such a physical incapacity as justifies an annulment”); Brief

Amicus Curiae Historians of Marriage.22 See 4 A.L.R.2d 227 §§ 2[a], 3[a] (Originally published in

1949) (listing U.S. cases in which the desire not to have

children was considered grounds for annulment only in

instances of fraud, if at all). 23 See Michael L. Eisenberg, M.D. et al., Predictors of not

Pursuing Infertility Treatment After an Infertility Diagnosis:


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permit certain persons to marry only if they provethat they cannot procreate.24 Because states supportthe freedom to marry for these other classes whocannot engage in unassisted procreation, the ban de-fenders’ insistence that same-sex couples may be de-

nied the freedom to marry due to their inability toengage in unassisted procreation makes no sense.

This Court has also recognized that procreation

is not an essential element of marriage, and that therights to marry and to procreate are distinct. In Ei-

senstadt v. Baird, this Court extended its conclusionin Griswold v. Connecticut, 381 U.S. 479, 485-86(1965), that married couples have a constitutionallyprotected right to engage in non-procreative sexual

intimacy to every individual, married or single, andindicated that “matters so fundamentally affecting aperson as the decision whether to bear or beget achild” should be “free from unwarranted governmen-tal intrusion.” 405 U.S. 438, 453 (1971).

Examination of a Prospective U.S. Cohort, 94 Fertility &Sterility No. 6, 2369 (2010); Surrogacy: A Brief U.S. History, 3

Family and Society, Encyc. of Contemp. Am. Soc. Issues, 1182

(Michael Shally-Jensen ed., 2011).24 See, e.g., Ariz. Rev. Stat. § 25-101(B) (proposed

legislation) (first cousins may marry only if both are age 65 or

older or if one is proven to be unable to reproduce); 750 Ill.

Comp. Stat. Ann. 5 § 212(a)(4) (first cousins may marry only if

both are age 55 or older or if one is permanently sterile); Ind.

Code Ann. § 31-11-1-2(2) (first cousins may marry only if both

are age 65 or older); Utah Code § 30-1-1(2)(a)-(b) (first cousins

may marry only if age 65 or older, or, if between ages 55-65,

one is unable to reproduce); Wis. Stat. Ann. § 765.03(1) (first

cousins may marry only if female is age 55 or older or if one is

permanently sterile).


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The characterization of marriage as, essentially,a state-sponsored incentive program for different-sexcouples and the fruits of their procreative sexual ac-tivity garners no support from state family laws ordecisions of this Court. The ban defenders’ limited

view of the purpose of civil marriage demeans therelationship between spouses and ignores the multi-ple other personal and societal purposes marriagehas always served. See Lawrence v. Texas, 539 U.S.558, 567 (2003) (“it would demean a married couplewere it to be said marriage is simply about the right

to have sexual intercourse”).

II. State Family Laws Recognize Multiple

Ways To Establish Legal Parent-Child

Relationships And Do Not Privilege

Biological Parents Over Other Legal

Parents.

State family laws provide many ways to estab-lish a legal parent-child relationship. A biological or

genetic connection to a child is one such means, but

it is neither a necessary nor always a sufficient one. Astrue v. Capato, 132 S. Ct. 2021, 2030 (2012) (“Abiological parent is not necessarily a child’s parentunder [state] law.”). Ignoring these state laws, bandefenders argue that it is permissible to exclude all

same-sex couples from marriage because states havea strong interest in using marriage to facilitate “op-timal parenting,” which they define as married bio-logical mothers and fathers providing “gender-differentiated” parenting. This argument is deeplyflawed. In this Part, we show that state family laws

do not always privilege biological parentage overother forms of parentage or limit marriage to coupleswho agree to parent only their own biological chil-


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dren. In Part III, we demonstrate that an allegedinterest in “gender-differentiated” parenting is con-trary to state family law and constitutional princi-ples.

A. State laws permit and protect non-

biological parent-child relationships

established through adoption, assisted

reproduction, and other ties.

Kentucky, Michigan, Ohio and Tennessee, like

all other states, recognize multiple bases for estab-lishing legal parentage.

Every state has long had laws that facilitate theadoption of children by married couples or single

adults who are not their biological parents. See Adoption Law & Practice, at ch. 1 (J.H. Hollinger ed.1988 & supp. 2014). States permit stepparents toadopt their spouse’s biological children.25 All statesrecognize adoption “as the legal equivalent of biolog-ical parenthood,” granting adoptive parents the

same rights, privileges, and obligations as biologicalparents.26 Smith v. O.F.F.E.R., 431 U.S. 816, 844,n.51 (1977).

States also allow married couples to have chil-dren using donor genetic material and assisted re-

25 See, e.g., Ky. Rev. Stat. § 199.470; Mich. Comp. Laws

§ 199.470; Ohio Rev. Code § 3107.081(E); Tenn. Code Ann. § 36-

1-102(15)(B).26 See, e.g., Mich. Comp. Laws § 710.60(2) (“No distinction

between the rights and duties of natural progeny and adopted

persons”); Ohio Rev. Code § 3107.15 (Adoptive parents are

treated as equivalent “for all purposes” to other legal parents).


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productive technologies. Every year, tens of thou-sands of couples have children as a result of assistedreproduction that involves donor eggs or sperm.27 The states that have addressed assisted reproduc-tion by statute or case law treat the resulting chil-

dren as the legal children of both spouses.28 Somestates similarly recognize unmarried different- andsame-sex couples as the legal parents of childrenconceived with donor gametes.29

27 See Centers for Disease Control and Prevention,

Assisted Reproductive Technology (ART) Success Rates,

available at http://www.cdc.gov/art/reports/index.html (CDC

data reporting that in 2012 65,160 babies resulted from ART

cycles, some of which included donor sperm in 2012; 19,847 of

these children were born from donor eggs). Moreover, the CDC

does not include artificial insemination in its definition of ARTs

and does not keep records of donor inseminations so this data

significantly underestimates the number of children born from

donor genetic material.28 See, e.g., Mich. Comp. Laws § 333.2824(6) (“A child

conceived by a married woman with consent of her husbandfollowing the utilization of assisted reproductive technology is

considered to be the legitimate child of the husband and wife.”);

Ohio Rev. Code § 3111.95(A) (same); Tenn. Code Ann. § 68-3-

306 (same).29 See, e.g ., 13 Del. C. § 8-703; N.H. Rev. Stat. Ann. § 168-

B:2; Nev. Rev. Stat. Ann. § 126.670; N.M. Stat. Ann. § 40-11A-

703; N.D. Cent. Code Ann. § 14-20-61; Wash. Rev. Code Ann. §

26.26.710; Wy. Stat. Ann. § 14-2-903; D.C. Code § 16-909(e)(1);

Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005); Frazier v.

Goudschaal, 295 P.3d 542 (Kan. 2013); In re Guardianship of

Madelyn B., 98 A.3d 494, Nos. 2013-403, 2013-445, 2013-593,

2014 WL 2958752 (N.H. 2014); In re Parentage of Robinson,

890 A.2d 1036, 1042 (N.J. Super. Ct. Ch. Div. 2005);Shineovich

v. Shineovich, 214 P.3d 29 (Or. Ct. App. 2009).


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States’ parentage laws also privilege parental“relationships that develop within the unitary fami-ly” over biological relationships in some circum-stances. Michael H. v. Gerald D., 491 U.S. 110, 123(1989). All states presume that a husband is a legal

parent of a child born to his wife during their mar-riage.30 While rebuttable, this presumption has of-ten withstood challenge when the husband (as a non-biological father) has had a caring and supportiveparental relationship to the child.31 States often es-top husbands who are non-biological fathers from

denying their parentage when continuation of thatstatus is in the child’s best interests. 32 And this

30 See, e.g., June Carbone & Naomi Cahn, Marriage,

Parentage, and Child Support, 45 FAM. L.Q. 219, 220 (2011)

(“All states continue to recognize at least a rebuttable

presumption that a child born within marriage is the child of

the husband, and many limit the circumstances in which it can

be rebutted.” (footnotes omitted)).31 See, e.g., Boone v. Ballinger, 228 S.W.3d 1, 10 (Ky. Ct.

App. 2007) (husband’s parental status upheld against biological

father “in order to prevent the harm that inevitably results

from the destruction of the bond that develops between a‘psychological father’ and a child who was born during his

marriage, and who has been raised as his own daughter or

son”); Leguillon v. Leguillon, 707 N.E.2d 571, 579 (Ohio Ct.

App. 1998) (rejecting “an interpretation of parentage that

would place the genetic relationship of the parties above all

other considerations”); Atkinson v. Atkinson, 408 N.W.2d 516,

517 (Mich. Ct. App. 1987) (wife estopped from denying former

husband’s status as child’s legal father because he had always

treated child as his); Sinicropi v. Mazurek, 729 N.W. 256, 264

(Mich. Ct. App. 2006) (“equities of the case” warranted

protection of child’s relationship and custody with ex-husband

over proof that he was not the biological father).32 See, e.g. Welch v. Welch, 195 S.W.3d 72, 75 (Tenn. Ct.

App. 2005) (non-biological father could not disclaim paternity


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Court has recognized the constitutionality of statelaws that allow a husband and wife to resist a biolog-ical father’s challenge to the husband’s presumedparentage. Michael H. v. Gerald D., 491 U.S. at 123.

There are also other circumstances where manystates recognize and protect parent-child relation-ships based on functional parenting, even in the ab-sence of a marital or biological connection.33

In addition to the circumstances where a biologi-

cal or genetic tie is unnecessary to establish parent-age, there are others where the existence of a biolog-

ical or genetic tie is insufficient to give rise to a legalparent-child relationship. Consistent with thisCourt’s decisions concerning unwed fathers,34 state

upon divorcing child’s mother; Tennessee law “clearly rejects a

bright-line rule” that genetic testing may automatically relieve

a legal father of his obligations).33 See Picklesimmer v. Mullins, 317 S.W.3d 569 (Ky. 2010);

In re Mullen, 953 N.E.2d 302 (Ohio 2011); In re Nicholas H ., 46

P.3d 932, 933 (Cal. 2002); Unif. Parentage Act § 204(a)(5)

(providing that a man is presumed to be a child’s legal parent if“for the first two years of the child’s life, he resided in the same

household with the child and openly held out the child as his

own.”). At least 19 states have enacted the original UPA, while

others have enacted significant portions of it. See Uniform

Parentage Act of 2002, Prefatory Note. Nine states have

enacted the Revised UPA, promulgated in 2002. See Uniform

Law Commission, Parentage Act,

http://www.uniformlawcommission.com/Act.aspx?title=Parenta

ge%20Act.34 See, e.g ., Quilloin v. Walcott, 434 U.S. 246, 254-55 (1978)

(best interests standard for child in adoption proceeding does

not violate Due Process rights of biological father who showed

no commitment to parental responsibilities); Lehr v. Robertson,

463 U.S. 248, 261-62 & n.19 (1983) (“biological link” provides a


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family laws make clear that “the mere existence of abiological link” is insufficient to merit protection ofan unwed father’s parental rights in proceedingswhere other adults are seeking to adopt his child.See Lehr v. Robertson, 463 U.S. 248, 261-62 & n.19

(1983).35 In approximately half the states, an unwedbiological father’s consent to his child’s adoption isnot required unless he has filed a timely paternityclaim with the State Putative Father Registry anddeveloped a “substantial relationship” to the child.36 In states without a Registry, unwed fathers cannot

block an adoption unless they have lived with, caredfor, paid child support for, or otherwise manifested agenuine parental interest in the child.37

man the opportunity to “develop a relationship with hisoffspring,” but if he fails to “accept[] some measure of

responsibility for the child’s future,” he is not entitled to

exercise parental rights or block the child’s adoption).35 Cf . Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013)

(holding that a biological father who had never had legal or

physical custody of his child cannot invoke the protections of

the federal Indian Child Welfare Act to block the proposed

adoption of his child). 36 See Adoption Law & Practice § 2.04A.37 See, e.g., In re Dearing , 648 N.E.2d 57 (Ohio 1994),

review denied, 646 N.E.2d 467 (1995) (putative father who was

notified of proposed adoption failed to file objection within 30

days required by Ohio statute and lost his right to challenge

adoption).


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B.

State laws do not privilege biologicalparent-child relationships over other

types of legal parent-child

relationships.

The ban defenders contend that the marriageban is necessary so that marriage can serve as the

ideal setting for biological parenting by opposite-sexparents. As Michigan put it in the proceedings be-low: “It is certainly within the realm of rationalspeculation to believe that … it is beneficial for chil-

dren to have a biological connection to both of theirparents.” Brief for Michigan Defendants-Appellantsat 40-42, DeBoer v. Snyder, 772 F.3d 388 (No. 14-1341) (6th Cir. 2014). Limiting marriage to opposite-sex couples, the argument goes, “reinforces the idea”that biological parents are best for children. Id.

In light of the range of circumstances in whichstates permit non-biological parenting, this argu-ment is baffling. Whether same-sex couples maymarry or not, marriage will remain an institution in

which couples raise biological children, non-biological children, or no children at all.

Indeed, the states could not expressly limit mar-riage to “model” biological parents. In Eisenstadt,this Court made clear that “matters so fundamental-

ly affecting a person as a decision whether to bear orbeget a child” should “be free from unwarranted gov-ernmental intrusion.” 405 U.S. at 453. Conditioningmarriage on biological parenting is just such an un-warranted governmental intrusion. By permitting

and facilitating non-biological parenting both insideand outside of marriage, the states have made clearthat an interest in encouraging “optimal” parenting


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by children’s biological parents cannot justify themarriage bans.

III. State Marital, Parentage, And Custody

Laws Have Abandoned Gender Distinctions

And Do Not Privilege “Gender-

Differentiated” Parenting.

Since the mid-19th century, states have gradual-ly removed the “baggage of sexual stereotypes” frommarriage. Orr v. Orr, 440 U.S. 268, 283 (1979).

Marriage used to be an institution replete with stateimposed gender- and sex-specific roles and responsi-bilities addressing, for example, property ownership,employment, wages, and childrearing.38 Today, thelaws governing marriage are free of state-mandatedgender norms in nearly “every respect except the re-quirement that would-be spouses be of different gen-

ders.” Latta v. Otter, 771 F.3d 456, 485-90 (9th Cir.2014) (Berzon, J., concurring). Similarly, state fami-ly laws no longer allow courts to rely on stereotypicalnotions that a parent’s sex or gender is legally rele-

vant to child custody determinations or to the alloca-tion of child support obligations.

Swimming against the tide of this transfor-mation, ban defenders suggest that the marriage ex-clusions can be justified by the states’ interest in en-

couraging children to be “raised by both a motherand a father,” each performing distinct sex-basedroles. Brief for Michigan Defendants-Appellants at40, DeBoer v. Snyder, 772 F.3d 388 (No. 14- 1341)(6th Cir. 2014). This is best for children, the ban de-

38 See infra pp. 19-24.


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fenders argue, because mothers and fathers bringdifferent abilities to the parenting enterprise. Moth-ers, they argue, “tend to be more emotion focused,while fathers, in turn, are more playful and a littlebit more task-oriented.” Id. at 42 (internal quota-

tion marks omitted). This asserted interest in “op-timal parenting” relies on the very gender stereo-types about parents that the states have abolished,conflicts with social science research and constitu-tional principles, and is belied by the states’ failureto exclude any other alleged “non-optimal” parents

from marriage.

A. States have abandoned marital,

parentage, and custody laws based on

gender stereotypes.

Under the laws of every state, marriage has

gradually evolved to become a union free of statemandated sex- or gender-specific roles. Since themid-19th century, state legislatures and courts haveprogressively eliminated the once prevalent sex-

specific laws regulating entry into marriage, allocat-ing marital roles, establishing the consequences of

divorce, and determining child custody and support.

Kentucky, Michigan, Ohio, and Tennessee haveall participated in this transformation. Every state

has removed gender-based distinctions that once de-fined the marital relationship under the now-abolished doctrine of coverture.39 State laws now

39 Mich. Comp. Laws §§ 557.21–557.28 (established in

1844 as the Married Women’s Property Acts, which became the

Rights and Liabilities of Married Women Act of 1981,


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acknowledge that both husbands and wives have theright to retain their own earnings, manage their

jointly owned marital or community property, andcontrol their separate property.40 Even states likeOhio that retain the common law doctrine of neces-

saries, which, historically, obligated only the hus-band to pay creditors for his wife’s necessaries, havemade that obligation gender-neutral.41

Like other states, Kentucky, Michigan, Ohio, andTennessee have also eliminated traditional gender-

based distinctions upon divorce or the death of aspouse. The grounds for obtaining a divorce are thesame for each spouse, and either spouse may initiate

protecting married women’s property, earnings, and full

contract rights, as if unmarried); Mich. Const. art. X, § 1 (1963

edit officially abolished coverture); Tenn. Code Ann. § 36-3-504

(established in 1919 as the Married Women’s Act, permitting

married women separate and full rights in real estate as if

unmarried); Ky. Rev. Stat. §§ 404.020–404.030, 404.060

(established in 1894 as the Weissinger Act, and amended in

1942, granting married women the right to acquire, hold, and

dispose of real and personal property, to contract, sue, and besued as if unmarried); see also People v. Wallace, 434 N.W.2d

422, 428 (Mich. Ct. App. 1988) (married women now have

property rights “free from their husbands’ interference”); Ohio

Rev. Code §§ 3103.04, 3103.07, 3103.08, 2307.09 (various equal

and separate spousal legal and property rights); Ohio Rev.

Code § 3105.18(C)(2) (both spouses are considered to have

contributed equally to the production of marital income);

Preston v. Smith, 293 S.W.2d 51, 57 (Tenn. Ct. App. 1955)

(“[M]arriage shall not impose any disability or incapacity on a

woman as to the ownership, acquisition or disposition of

property of any sort.”).40 Id. 41 See, e.g ., Ohio Rev. Code § 3103.03 (doctrine of

necessaries applies to both spouses).


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a dissolution action.42 Upon divorce, states treat themarriage as an economic partnership subject to thecourt’s distribution of the spouses’ accumulated as-sets as the equities of each case require, without re-gard to gender.43 Either party can seek spousal sup-

port or “maintenance,” as determined on the basis oftheir needs, not their sex.44 In every state, marriedspouses have a right of intestate succession regard-less of gender,45 and, except for Georgia, survivingspouses—without regard to gender—are entitled tosome kind of elective or forced share of the decedent-

spouse’s property.46

The principle of equal rights and responsibilitiesfor both spouses applies equally to their roles as par-

ents. In the past, gender-specific family laws likethe “tender years doctrine,” presumed that motherswere entitled to custody of young children becausethey were “naturally” nurturing.47 See Pusey v. Pu-

42 Ky. Rev. Stat. §§ 403.140, 403.170; Mich. Comp. Laws

§ 552.11; Ohio Rev. Code § 3105.01; Tenn. Code Ann. §§ 36-4-

101, 36-4-103.43 See, e.g., Ky. Rev. Stat. § 403.190; Mich. Comp. Laws

§§ 552.18, 552.19; Ohio Rev. Code § 3105.18; Tenn. Code Ann.

§§ 36-5-101, 36-4-121.44 See, e.g., Ky. Rev. Stat. §§ 403.160, 403.200; Mich.

Comp. Laws §§ 552.13, 552.23; Ohio Rev. Code § 3105.18(C);

Tenn. Code Ann. § 36-5-121.45 See, e.g., Ky. Rev. Stat. § 391.010(4); Mich. Comp. Laws

§ 700.2102; Ohio Rev. Code §§ 2106.01, et seq.; Tenn. Code

Ann. § 31-2-104.46 Joshua C. Tate, Caregiving and the Case for

Testamentary Freedom, 42 U.C. Davis L. Rev. 129, 160 (2008).47 See, e.g., Krieger v. Krieger, 81 P.2d 1081, 1083 (Idaho

1938) (the maternal preference “needs no argument to support

it because it arises out of the … instincts of motherhood; nature


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sey, 728 P.2d 117, 119-20 (Utah 1986) (rejecting the“tender years presumption” as based on “outdatedstereotypes”).

Today, both parents are equally responsible forthe care and support of their children, and, uponseparation or divorce, the standards for child custodydeterminations are gender-neutral. The prevailinglegal standard for determining child custody is the

broadly defined and gender-neutral “best interests ofthe child” standard. This standard grants trial

courts discretion to “liberally construe” a long list ofspecific child-centered factors relevant to the circum-stances of each case.48 Many appellate courts haveoverruled trial court determinations that depart

from these factors in favor of lingering gender-rolestereotypes.49

has ordained it”); Tuter v. Tuter, 120 S.W.2d 203, 205 (Mo. Ct.

App. 1938) (“There is but a twilight zone between a mother’s

love and the atmosphere of heaven.”).

48 Michigan’s comprehensive Child Custody Act of 1970,1970 PA 91, Mich. Comp. Laws § 722.21 et seq., has been a

model for the statutory reforms in many other states. See also

Ky. Rev. Stat. § 403.270; Ohio Rev. Code §§ 3103.03, 3109.03,

3109.04 (both parents have equal rights and responsibilities as

to the care and custody of their children; parent’s gender is

legally irrelevant); Tenn. Code Ann. § 36-6-101(d) (2001)

(gender cannot “constitute a factor in favor or against the

award of custody”).49 See, e.g., Ireland v. Smith, 547 N.W.2d 686 (Mich. 1996)

(noting that young child was thriving in mother’s care and

reversing order transferring custody to father based on trial

court’s personal view that there is “no way that a single parent,

attending an academic program at an institution as prestigious

as the University of Michigan, can do justice to their studies


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State and federal child support laws and guide-lines also apply equally to both parents. In everystate, either or both parents may be liable for childsupport, based on the child’s needs and parental re-sources and without regard to the parents’ gender or

marital status.50

The elimination of sex- and gender-based dis-tinctions in family laws described here is attributa-

ble, in part, to decades of social science research.This research demonstrates that a child’s adjust-

ment, school performance, peer relations, cognitivefunctioning, and self-esteem is “best accounted for byvariations” in the “the quality of the relationship be-tween the parents or significant adults in the chil-

dren’s and adolescent’s lives, and the availability ofeconomic and socio-economic resources.” 51 As de-tailed further in the Brief Amicus Curiae AmericanSociological Association, these studies make clearthat the “parents’ sex and sexual orientation … do

and to raising of an infant child.” (citation omitted)); see also

Linda R. v. Richard E ., 162 A.D.2d 48 (App. Div. 1990)

(reversing custody order to father where trial court expected

mother, but not father, to give priority to child over career).50 See Laura W. Morgan, Child Support Guidelines:

Interpretation and Application § 1.07 (2d ed. 2013); Ky. Rev.

Stat. § 403.212; Ohio Rev. Code §§ 3103.03, 3109.03, 3109.04;

Mich. Comp. Laws § 552.605; Tenn. Code Ann. § 36-5-101. The

federal Family Support Act of 1988, Pub. L. No. 100-485, 102

Stat. 2343 (1988), also applied a support obligation to both

parents.51 Michael E. Lamb, Mothers, Fathers, Families, and

Circumstances Factors Affecting Children’s Adjustment, 16

Applied Developmental Sci. 98-111 (2012).


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not affect either the capacity to be good parents ortheir children’s healthy development.”52

B. State laws do not and cannot limit

marriage to those who parent according

to prescribed gender norms.

Beyond relying on the same discredited sex andgender stereotypes about women and men havingdifferent parental abilities, the ban defenders’ as-serted interest in “optimal” gender-differentiated

parenting cannot support the ban for at least twoadditional reasons: (1) states do not limit marriageto those who can satisfy specific parental norms, and(2) any effort to enforce gender-differentiated roles inmarriage or parenting would be unconstitutional.

1. States do not limit marriage to those

who satisfy specific parental norms.

The exclusion of same-sex couples from marriagebecause they allegedly cannot satisfy gender-based

parental norms, also “[makes] no sense in light ofhow [states] treat[] other groups similarly situatedin relevant respects.” Bd. of Trs. of Univ. of Ala. v.Garrett, 531 U.S. 356, 366 n.4 (2001) (citing City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432, 447-50 (1985)). States deny no other couples the right tomarry based on a belief that they will provide asuboptimal setting for raising children. No state re-quires applicants for a marriage license to provetheir ability to parent or to pledge to raise their chil-

dren in accordance with state-prescribed childrear-

52 Id.


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ing standards.53 Likewise, no state excludes impov-erished couples from marriage, despite the fact thatparental resources strongly correlate with betteroutcomes for children.54 Cf. Varnum v. Brien, 763N.W.2d 862, 900 (Iowa 2009) (noting that, except for

same-sex couples, states do “not exclude from mar-riage … child abusers, sexual predators, parents ne-glecting to provide child support, and violent fel-ons—[groups] that are undeniably less than optimalparents”).55

Excluding same-sex couples from marriage andits attendant legal protections because they allegedlydo not provide a certain kind of parenting imposesan unjustified burden on same-sex couples. This is

especially so because different-sex couples are notrequired to have children at all, much less prove

53 The Michigan defendants conceded this point at the trial

court hearing:

As defendant Lisa Brown testified, Michigan county

clerks are not authorized to consider a couple’sstability, criminal record, ability to procreate,

parenting skills, or the potential future outcomes of

their children before issuing a marriage license.

County clerks may only evaluate the age and residency

of the license applicants and whether either of the

applicants is currently married.

DeBoer v. Snyder, 973 F. Supp. 2d 757, 764 (E.D. Mich. 2014).54 See supra note 52 and accompanying text.55 It would also be unconstitutional to limit marriage in

this way. As this Court long ago recognized in Zablocki v.

Redhail, it is impermissible to condition the right to marry on

the adequate performance of parental responsibilities. 434

U.S. 374, 386, 388-89 (1978) (unconstitutional to condition

marriage on payment of outstanding child support).


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their parental fitness. A desire to mark the relation-ships and parenting abilities of same-sex couples asless worthy of respect is an impermissible interest,under any standard of constitutional review. Wind-sor, 133 S. Ct. at 2695-96. Accordingly, it is hardly

surprising that the Court of Appeals in this case andcourts throughout the country have overwhelminglyrejected the optimal parenting argument, recognizingthat “the capacity to raise children … turns not onsexual orientation but on individual choices and in-dividual commitment.” DeBoer v. Snyder, 772 F.3d

388, 405 (6th Cir. 2014).56

2. States cannot enforce gender-based

parental norms.

Beyond its inconsistency with state family laws,any effort to enforce gender-based roles in marriage

or parenting would be unconstitutional. The ban de-fenders’ claims about the “unique relational roles”that men and women play in the development oftheir children, including that women are better at

“nurturing,” while fathers are more “task-oriented,”see supra p. 18, are precisely the type of “overbroad

generalization[s] about the different talents, capaci-

56 See, e.g ., Wolf v. Walker, 766 F.3d 648, 667 (7th Cir.

2014); Latta, 771 F.3d at 476; Bostic v. Schaefer, 760 F.3d 352,

384 (4th Cir. 2013); DeBoer v. Snyder, 973 F. Supp. 2d 757, 770

(E.D. Mich. 2014) (noting that over 150 sociological and

psychological studies have repeatedly confirmed that there is

no scientific basis to differentiate between children raised in

same-sex versus heterosexual households); Perry v.

Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010),

reinstated in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).


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ties, or preferences of males and females” that theConstitution prohibits, United States v. Virginia, 518U.S. 515, 533 (1996), even when the generalization“is not entirely without empirical support,” Wein-berger v. Wiesenfeld, 420 U.S. 636, 645 (1975). See,

e.g ., Kirchberg v. Feenstra, 450 U.S. 455 (1981) (in-validating state law that gave husbands the unilat-eral right to dispose of jointly owned communityproperty without wives’ consent); Weinberger, 420U.S. at 652 (“a father, no less than a mother, has aconstitutionally protected right to the [custody and

care]” of their children); Orr, 440 U.S. at 279-280 (rejecting state alimony statutes that used “sex as aproxy for need” in order to announce “the State’spreference for an allocation of family responsibilitiesunder which the wife plays a dependent role.”); Cali-

fano v. Goldfarb, 430 U.S. 199, 205, 207 (1977) (in-

validating Social Security provisions premised on the“archaic and overbroad” generalizations that “wivesin our society frequently are dependent upon theirhusbands, while husbands rarely are dependent up-on their wives”); Frontiero v. Richardson, 411 U.S.

677 (1973) (military benefits for service member’sdependents must be calculated the same for men andwomen).57

This Court has also invalidated sex-specific dis-

tinctions in state parentage laws. See, e.g. Stanley v.Illinois, 405 U.S. 645, 653, 657 (1972) (striking downstate law that conclusively presumed that all un-married fathers were “unqualified to raise their chil-

57 Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (holding

that “private biases and the possible injury they might inflict”

are not permissible considerations in a custody dispute).


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dren”); Caban v. Mohammed, 441 U.S. 380, 389(1979) (rejecting the claim that “any universal dif-ference between maternal and paternal relations atevery phase of a child’s development” justified sex-based distinctions in adoption laws). Other courts

have similarly ruled. Accord Ex parte Devine, 398So. 2d 686, 695-96 (Ala. 1981) (“[T]he tender yearspresumption represents an unconstitutional gender-based classification which discriminates between fa-thers and mothers in child custody proceedings sole-ly on the basis of sex.”).

Any state effort to ensure that children will besocialized into gender roles that are allegedly appro-priate for their biological sex would also be imper-

missible. See Stanton v. Stanton, 421 U.S. 7, 14-15(1975) (“A child, male or female, is still a child. Nolonger is the female destined solely for the home andthe rearing of the family, and only the male for themarketplace and the world of ideas.”); see also Miss.Univ. for Women v. Hogan, 458 U.S. 718, 729 (1982)

(rejecting “outmoded assumptions” that only women

should be nurses). In addition, the powerful com-mon-law traditions—bolstered by constitutional de-cisions—that protect the rights of parents to controlthe care and socialization of their children prohibitstates from requiring parents to parent in an “opti-

mal” way. See Pierce v. Soc’y of Sisters, 268 U.S.510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390,399 (1923); Troxel v. Granville, 530 U.S. 57, 72-73(2000).


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IV.

State Family Laws Recognize That It IsImpermissible To Punish Children To

Influence The Behavior Of Adults.

As family law scholars, Amici are committed toensuring the well-being of all children. The mar-riage bans, by design and operation, violate the basictenet of family law that all children should be treat-

ed with equal dignity regardless of who their parentsare. The bans deprive children of same-sex couplesof the potentially stabilizing effects of marriage, in-

cluding important governmental benefits and thefeeling of self-worth that comes from knowing thattheir parents’ relationship is equally worthy of

“recognition, dignity, and protection.” Windsor, 133S.Ct. at 2692.

As explained in Brief of Petitioners at 50, Tancov. Haslam (No. 14-562), it is utterly implausible tobelieve that barring same-sex couples and their chil-dren from marriage improves the well-being of chil-dren raised by different-sex couples. But even if

such laws achieved some social good, punishing in-nocent children is an impermissible and unconstitu-

tional means of trying to influence the behavior ofadults. It is also contrary to the basic goals of everystate’s family laws.

A. State laws reflect that it is

impermissible to punish children to

influence parental behavior.

Historically, state parentage laws saddled the

children of unwed parents with the demeaning label“illegitimate” and denied these children importantrights in an effort to encourage childrearing within


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marriage. See Weber v. Aetna Cas. & Sur. Co., 406U.S. 164, 175 (1972) (“The status of illegitimacy hasexpressed through the ages society’s condemnation ofirresponsible liaisons beyond the bonds of mar-riage.”); Melissa Murray, Marriage As Punishment,

112 Colum. L. Rev. 1, 33 n.165 (2012) (marriage wasoffered as a way to lead unwed mothers away “fromvice towards the path of virtue”). These laws deniednonmarital children the right to a relationship withand support from their fathers, intestate succession,and compensation for their parents’ wrongful death

or injury solely because of the circumstances of theirbirth. See Trimble v. Gordon, 430 U.S. 762, 768(1977) (recognizing “harsh common-law rule underwhich an illegitimate child was filius nullius”).

Since the late 1960s, however, this Court hasrecognized that “imposing disabilities on the illegit-imate child is contrary to the basic concept of oursystem that legal burdens should bear some rela-tionship to individual responsibility or wrongdoing.”

Weber, 406 U.S. at 175. Because “no child is respon-

sible for his birth … penalizing the illegitimate childis … an unjust[] way of deterring the parent.” Id.;see also Levy v. Louisiana, 391 U.S. 68, 71 (1968)(“Why should the illegitimate child be denied rightsmerely because of his birth out of wedlock?”).

Consistent with this directive, state family lawsno longer support the proposition that it is permissi-ble to deny critical benefits and security to nonmari-

tal children in order to influence parents to procreatewithin marriage or to provide more benefits and se-

curity to the children of married couples. States nowrecognize that children of unmarried parents are en-titled to the same rights as children born to married


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parents.58 Children born to unmarried parents havethe same inheritance rights as children born to mar-ried parents when paternity has been established.59 In custody disputes, state courts consider the samefactors for determining the best interests of nonmar-

ital and marital children.60 And states impose childsupport and other parental obligations on all parentsregardless of their marital status.61

B. The marriage bans punish children

raised by same-sex couples.

The marriage bans function in a way that is re-markably similar to the now-repudiated laws that

58 See, e.g., Unif. Parentage Act § 202 (2001 & Supp. 2010)

(“A child born to parents who are not married to each other has

the same rights under the law as a child born to parents who

are married to each other.”); Ohio Rev. Code § 3111.01(B) (“the

parent and child relationship extends equally to all children

and all parents, regardless of the marital status of the

parents”); Tenn. Code Ann. § 36-2-316.

59 See Unif. Parentage Act § 202; Ky. Rev. Stat. § 391.105;Mich. Comp. Laws § 700.2114; Ohio Rev. Code § 3111.01; Tenn.

Code Ann. § 36-2-316.60 See, e.g., Basham v. Wilkins, 851 S.W.2d 491 (Ky. Ct.

App. 1993) (though Kentucky hasn’t adopted the UPA, the

“‘best interests of the child’ standard applies in determining

custody of children born out of wedlock and gone is our

preference for the mother of the illegitimate child”); Mich.

Comp. Laws § 722.21 et seq.; Ohio Rev. Code § 2151.231; S. Ry.

Co. v. Sanders, 246 S.W.2d 65, 66 (Tenn. 1952) (statutes

regarding rights of nonmarital children were enacted “solely for

the purpose of fixing the status of natural children”).61 See Gomez v. Perez, 409 U.S. 535 (1973) (denying

nonmarital children the opportunity to obtain paternal support

violates equal protection).


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stigmatized and denied legal and economic protec-tions to children born out-of-wedlock.

The bans harm the children of same-sex couplesby denying their families access to hundreds of stateand federal benefits that may be conducive to provid-ing stable and secure environments for raising chil-dren. The plight of the DeBoer plaintiffs, who havebeen unable to jointly adopt their children, clearly

illustrates these harms. Because, like a number ofstates, Michigan prohibits joint adoption unless a

couple is married,62 and Ohio and Kentucky limitstepparent adoptions to married couples, 63 thesestates deny children of same-sex couples all the ben-efits that follow from a legal parental relationship:

the right to have medical decisions made by bothparents,64 the right to child support from both par-ents,65 the right to inheritance and Social Securitybenefits,66 and the right to bring a wrongful deathsuit to name but a few.67

Moreover, the bans deny children of same-sex

couples the same stable family structure that the

62 Mich. Comp. Laws §§ 710.24(1)-(2).63 Ky. Rev. Stat. § 199.470(2); Ohio Rev. Code

§§ 3107.03(D)(1).64 See, e.g., Ky. Rev. Stat. § 311.631; Tenn. Code Ann.

§§ 36-6-101, 36-6-103.65 See, e.g., Ky. Rev. Stat. 405.020; Tenn. Code Ann. § 36-5-

101.66 See, e.g., Ky. Rev. Stat. § 391.010 et seq.; Mich. Comp.

Laws §§ 700.2103; Ohio 2105.06 (until 3/23/15); Tenn. 31-2-105.67 See, e.g., Ky. Rev. Stat. § 411.130; Mich. Comp. Laws

§ 600.2922; Ohio Rev. Code § 2125.02; Tenn. Code Ann. § 20-5-

106.


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states themselves assert to justify the ban. The banscategorically exclude children of same-sex couplesfrom the rights and protections intended to promotethe security of families and assist them in times ofcrisis. Because all children and adolescents do bet-

ter psychologically when their parents are emotion-ally secure and supported, the categorical exclusionof same-sex couples from marriage and its protec-tions deprives children of same-sex couples of thesestabilizing forces. Indeed, Michigan recognized asmuch in the proceedings below when it conceded

that “extending the boundaries of marriage (for ex-ample, to same-sex couples) might give some chil-dren being raised in those arrangements more stabil-ity.” Brief for Michigan Defendants-Appellants at46, DeBoer v. Snyder, 772 F.3d 388 (No. 14-1341)(6th Cir. 2014).

The marriage bans are an official statement“that the family relationship of same-sex couples isnot of comparable stature or equal dignity” to that of

married couples. In re Marriage Cases, 183 P.3d

384, 452 (Cal. 2008). This stigma leads children tounderstand that the state considers their gay andlesbian parents to be unworthy of participating inthe institution of marriage and devalues their fami-lies compared to families headed by married hetero-

sexuals. Goodridge v. Dep’t of Pub. Health, 798N.E.2d 941, 963 (Mass. 2003). The bans implicitlyand inherently signal to children that the statethinks their families are inferior.

Whether defended as an effort to increase pro-

creation, encourage biological, “gender-differentiated” parenting, or to foster stable envi-ronments for children, the marriage bans all have


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the same effect: They deprive children of benefits inorder to influence the behavior of others. This Courtdeclared such policies “unjust” in the illegitimacycases. Weber, 406 U.S. at 175. It should likewiserecognize the unjust effects the marriage bans have

on same-sex couples and their children.

CONCLUSION

Amici ask that this Court reverse the Sixth Cir-cuit’s decisions in the above-captioned actions.

Respectfully submitted,

Joan Heifetz Hollinger

UC BERKELEY SCHOOL OF

L AW

Berkeley, CA 94720

Courtney Joslin

UC D AVIS SCHOOL OF

L AW

400 Mrak Hall DriveDavis, CA 95616

E. Joshua Rosenkranz

Counsel of Record

Mark S. Davies

Jeremy Peterman

ORRICK , HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000 [email protected]

Date: March 6, 2015


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APPENDIX A 1

SARAH

ABRAMOWICZ

Associate Professor of

Law

Wayne State University

Law School

JAMIE R. ABRAMS

Associate Professor of

Law

University of Louisville

Louis D. Brandeis

School of Law

KERRY ABRAMS

Professor of LawUniversity of Virginia

School of Law

EREZ ALONI

Assistant Professor ofLaw

Whittier Law School

RALPH RICHARD

BANKS

Jackson Eli Reynolds

Professor of Law

Stanford Law School

ELIZABETH

BARTHOLET

Morris Wasserstein

Professor of Law

Faculty Director, Child

Advocacy Program

Harvard Law School MARIANNE BLAIR

Professor of Law

University of Tulsa

College of Law

GRACE GANZ

BLUMBERG

Distinguished Professor

of Law Emerita

UCLA School of Law

1 University affiliation of the professors is given for

identification purposes only, and implies no endorsement by

Documents

Family Law Scholars Amicus Brief